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United States v. Johnson

United States District Court, D. Nebraska

March 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SHERMAN JOHNSON, JR. and SARKIS LABACHYAN, Defendants.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on the oral and written Findings and Recommendation and Order (Filing Nos. 51, 53) of the magistrate judge[1] recommending the Court deny (1) defendant Sherman Johnson, Jr.'s (“Johnson”) Motion to Suppress (Filing No. 42) and (2) defendant Sarkis Labachyan's (“Labachyan”) Motion to Suppress (Filing No. 40). Johnson and Labachyan object to the magistrate judge's Findings and Recommendations. For the reasons stated below, both Johnson's and Labachyan's objections are overruled and both Motions to Suppress are denied.

         I. BACKGROUND

         On June 21, 2016, Johnson and Labachyan were traveling east on Interstate 80 in Omaha, Nebraska, in a rented white Toyota minivan with California license plates. Douglas County Sheriff's Deputy Eric Olson (“Deputy Olson”) pulled the minivan over for following too closely in violation of Neb. Rev. Stat. § 60-6, 140(1). Labachyan was driving and Johnson was sleeping on an inflatable mattress in the back. Deputy Olson had been working criminal interdiction along the interstate when he pulled the minivan over. At a hearing regarding the Motions to Suppress, Deputy Olson admitted the purpose of working interdiction is to use traffic violations as a way to “troll” for possible violators of narcotics laws. When Deputy Olson observed about four vehicles in a group that failed to have sufficient stopping distance between each of the cars, Deputy Olson chose to pull over the third car in the group because it had California license plates and his practice was to target out-of-state vehicles.

         Deputy Olson approached the vehicle and noticed it had a “lived-in look, ” with Johnson sleeping in the back and numerous food and drink wrappers strewn about. Deputy Olson told Labachyan the reason he pulled him over, took his license and the rental agreement, and asked Labachyan to sit in the patrol car while Deputy Olson performed a record check. While Deputy Olson performed the record check, he interviewed Labachyan about his destination and purpose for the trip.[2] During the interview, Deputy Olson repeatedly informed Labachyan that he would likely give him a warning.

         Labachyan told Deputy Olson that he and Johnson were traveling to East Moline, Illinois, to see Johnson's Aunt Dorothy who had recently been in the hospital, and that they planned to stay there for a couple of days. Deputy Olson thought this was strange since the rental agreement would expire in two days, although he conceded that a rental could be extended by simply calling the rental agency and that drug dealers would not purposely let their rental expire. Because Johnson was the renter of the vehicle, Deputy Olson went back to the Toyota to get Johnson's information and ask him several questions.

         Deputy Olson asked Johnson about his travel plans while Johnson was looking for his identification. Johnson stated they were briefly stopping in Lincoln, Nebraska, to visit his cousin[3] before going to East Moline to see his Aunt Jenette where he planned to stay for a couple of days. Deputy Olson asked Johnson if he or Labachyan had ever been arrested; Johnson admitted he had been arrested for “weed, ” but he stated Labachyan had never been arrested.

         Deputy Olson returned to the patrol car and asked Labachyan who the pair was planning on visiting and if they were planning on stopping before East Moline. Labachyan said they were visiting family and did not plan to stop before East Moline. Deputy Olson asked if the family member's name was Dorothy, to which Labachyan replied that it was a big family. Deputy Olson asked Labachyan if he had ever been arrested, and Labachyan replied that he had never been arrested.

         Deputy Olson then asked Labachyan if there were any weapons in the car and Labachyan said there were none. While running a record check for arrests, Deputy Olson asked Labachyan why they chose to drive instead of fly. Labachyan said they should have flown but drove to see the scenery. As Deputy Olson conducted the traffic stop, another officer, Deputy David Wintle (“Deputy Wintle”) arrived on the scene in response to Deputy Olson's earlier request for backup.

         Deputy Olson's record check uncovered that Labachyan had never been arrested but was stopped in Lancaster County, Nebraska, a few months earlier while with Johnson. Deputy Olson was also told that officers had seized $19, 000 of suspected money and some personal use marijuana from the pair. Although the report of the stop was accurate, the information that officers had seized money was inaccurate.[4] Deputy Olson asked Labachyan if he had been stopped in Lancaster County and had money or marijuana taken from him. Labachyan admitted he had been stopped but denied having money or marijuana taken from him.

         Deputy Olson asked Labachyan in succession if there were “any large amounts of currency in the vehicle, ” “anything illegal in the vehicle, ” “any large amounts of marijuana in the vehicle, ” “heroin, ” “cocaine, ” “methamphetamine, ” or “weapons of any sort.” Labachyan responded “no” to each of the questions in turn. Deputy Olson asked why Dorothy had been in the hospital and Labachyan answered that it was heart stress. Deputy Olson then ran an arrest check on Johnson and asked Labachyan if they had stopped in Lincoln or if Johnson had family in Lincoln. Labachyan said they had not stopped in Lincoln but Johnson did have family there.

         Deputy Olson expressed surprise at the cost of the rental, about $1, 000, to which Labachyan replied that he might seek a discount. Deputy Olson concluded his arrest check on Johnson and gave Labachyan an oral warning for the traffic violation. Deputy Olson then told Labachyan that he was going to ask Johnson some more questions. Labachyan attempted to exit the vehicle, but Deputy Olson motioned for him to close the door and told him to “just stay right here for a second.” Deputy Olson approached the Toyota where Johnson was on the phone. Deputy Olson asked Johnson to get off the phone and they had a brief conversation about Johnson's family. The following exchange then took place:

Deputy Olson: I'm going to give [Labachyan] a warning for everything.
Following too close and speeding, okay? He tells me there's nothing illegal inside the vehicle, is that right?
Johnson: No there's not.
Deputy Olson: Okay. There's no narcotics of any sort? No weapons of any sort?
Johnson: No.
Deputy Olson: No large amounts of currency?
Johnson: Nothing.
Deputy Olson: Were you guys stopped in April in Lancaster County?
Johnson: I believe so yes.
Deputy Olson: Did they take some marijuana from you? Johnson: Yeah, that was just some recreational-Deputy Olson: You don't have anything like that now? Johnson: Nothing. Deputy Olson: Here's your driver's license.
Johnson then offered that he had warned Labachyan in the past to drive more carefully. Deputy Olson asked Johnson some more questions, including the pair's current employment status. The exchange then resumed:
Deputy Olson: He said there's nothing illegal inside here, right?
Johnson: No, of course not.
Deputy Olson: Ok, can we search this ...

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